from the winner-and-still-champion dept

A few weeks ago we took a look at the latest filings in the long-running Viacom/YouTube dispute and were somewhat stunned at the ridiculous arguments made by Viacom, suggesting that the burden of proof was on YouTube to prove it did not know the videos on its site infringed on Viacom's copyrights. The idea that copyright law works this way, in which the burden of proof is on the service provider to show a lack of knowledge of infringement, is crazy. Thankfully, the court agreed.

In a ruling released today, the court gave a total victory to Google/YouTube, granting it summary judgment, saying that YouTube was protected from claims of infringement via the DMCA's safe harbors, and mocking Viacom's legal theories at the same time. Might as well jump right in with some quotes, including the money quote that Viacom's legal theory is "extravagant." Elsewhere the judge calls it "ingenious."

Viacom's argument that the volume of material and "the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives" (Viacom Opp. pp. 9-10) combine to deprive YouTube of the statutory safe harbor, is extravagant. If, as plaintiffs assert, neither side can determine the presence or absence of specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving the service provider notice. 17 U.S.C. § 512(c)(3)(A). The system is entirely workable: in 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube by the next business day. See 718 F. Supp. 2d 514 at 524.

Thus, the burden of showing that YouTube knew or was aware of the specific infringements of the works in suit cannot be shifted to YouTube to disprove. Congress has determined that the burden of identifying what must be taken down is to be on the copyright owner, a determination which has proven practicable in practice.

This was the crux of Viacom's argument. That because they could show a lot of infringement, and here and there point to some evidence that some people at YouTube might have known of general infringement, then the burden should be on YouTube. But the court clearly calls them on this, noting that's not what the law says, nor does it make sense. Instead, under the law, the burden is on Viacom and that makes sense.

From there, the court cut through the claim of "willful blindness" that Viacom (and some of the folks in our comments) were so fond of. The court's basic response is "huh?" Basically it points out that Viacom's argument makes no sense. It points out that the 2nd Circuit appeals court made it clear that red flag knowledge had to be about specific infringements and Viacom keeps talking about general knowledge. This is, of course, what plenty of us pointed at the time and the court clearly sees through Viacom's wacky argument.

Here, the examples proffered by plaintiffs (to which they claim YouTube was willfully blind) give at most information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them. The specific locations of infringements are not supplied: at most, an area of search is identified, and YouTube is left to find the infringing clip. As stated in UMG Recordings v. Shelter Capital Partners, LLC, No. 10-55732, 2013 WL 1092793, at *12 (9th Cir. Mar. 14, 2013) ("UMG III"),

Although the parties agree, in retrospect, that at times there was infringing material available on Veoh's services, the DMCA recognizes that service providers who do not locate and remove infringing materials they do not specifically know of should not suffer the loss of safe harbor protection.

The Karim memorandum states that infringing clips of some well-known shows "can still be found," but does not identify the specific clips he saw or where he found them. The Wilkens declaration submitted by plaintiffs asserts that there were over 450 such clips on YouTube at the time, and presumably some of them contained the infringing matter seen by Mr. Karim. To find them would require YouTube to locate and review over 450 clips. The DMCA excuses YouTube from doing that search. Under § 512(m), nothing in the applicable section of the DMCA shall be construed to require YouTube's "affirmatively seeking the facts indicating infringing activity."

Mr. Karim's memorandum does not tie his observations to any specific clips. Application of the principle of willful blindness to his memorandum thus does not produce knowledge or awareness of infringement of specific clips-in-suit, out of the 450 available candidates. Nor does any other example tendered by plaintiffs.

It goes on to reject Viacom's theory that YouTube had the "right and ability to control" infringement on YouTube, by pointing out that its failure to monitor is completely allowed under the DMCA, contrary to Viacom's desire to pretend otherwise:

YouTube's decision to restrict its monitoring efforts to certain groups of infringing clips, like its decisions "to restrict access to its proprietary search mechanisms," do not exclude it from the safe harbor, regardless of their motivation.

Further, it points out that the rest of Viacom's arguments just show "the normal functioning of any service provider, and shows neither participation in, nor coercion of, user infringement activity." Basically, Viacom's bizarre attempt at making all service providers liable across the board has failed.

Finally, the court quickly dismisses Viacom's claim that because YouTube did deals to make its videos accessible via mobile phones, that syndication caused YouTube to lose its safe harbor protections. The court notes that this was just about making the videos accessible, not about YouTube selecting videos, but still letting users pick the videos they want to watch, but via their mobile phones. It notes that contrary to losing the safe harbor provisions, this is actually a reason for why the safe harbors are good, because it "serves the purpose" of the DMCA in "providing access to material stored at the direction of users."

Basically, Viacom has wasted an incredible amount of money on a massive lawsuit based on a very, very shaky premise that the court didn't buy the first time around, or the second time around. Of course, now we fully expect Viacom to throw more good money after bad, and keep trying to convince a court that its entirely unique interpretation of the DMCA makes sense.

What's quite telling, of course, is that you can't discuss how your lovely friends at Viacom just got their asses handed to them. So, I guess, mission accomplished, huh? Anything to distract people from the actual issue at hand.